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Episode Date: August 2, 2018

An immigration lawyer at the border says ICE agents are pressuring parents into being deported with their children. Vox’s Dara Lind broke the story. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Support for Today Explained comes from the ride-sharing app Uber. Uber has added new features to its app designed to take the stress out of pickup, and you can learn more about them at uber.com slash moving forward. The federal government had a deadline. One week ago today, it had to reunite the families that had been separated at the border. A federal judge named Dana Sabra issued the order in San Diego in late June. The federal government missed the deadline. Today, one week later, around 1,500 kids have been reunited with their parents.

About 300 have been discharged in other ways, but something like 700 children are still waiting to be reunified. And things are still chaotic at the border. A few days ago, there was a report of a six-year-old girl getting sexually assaulted while in detention. Yesterday, 500 fathers went on a hunger strike. And in El Paso, it looks like the government's even having trouble with paperwork. Late on Saturday night, the ACLU, which is the group that's kind of the lead plaintiff in the lawsuit over family separation and reunification, they filed something from a lawyer who had talked to four detainee fathers. Daryl Lynn broke this story.

She reports on immigration at Vox. Leila Aran was the lawyer with Paul Weiss, which is a big law firm in New York. Okay. She reported that the fathers had been reunited with their children on a bus and had all been given forms that gave them three options for what would happen now because all of the fathers had already been given deportation orders.

So they had the option of getting deported with their children, of getting deported alone and having their children kind of try to pursue their own individual court cases. And third, like, I don't want to answer either of these. I want to talk to a lawyer. Okay. So it's stay with your kids and get deported right now. Get deported yourself and your kids can find their own way through the system. Talk to aorted right now. Get deported yourself and your kids can find their own way through the system. Right. Talk to a lawyer right now.

Right. Except that on these forms, the first option, the you and your kid both get deported option was pre-selected. One of the fathers said that it had been written in ink. A couple of the others said

that it was distributed to them and told that like that was the one they had to choose. They were said that if they tried to choose another option, like ICE agents yelled at them. One of them said, what do you think you are, a lawyer? You know, one of them said, your child's going to be deported anyway. Are these forms even in Spanish or English? Those three options were offered in Spanish at the bottom of the form.

Spanish, but pre-filled out. Exactly. So these fathers said that a lot of the parents that they were with just kind of like gave up and signed the forms as was. But all four of them refused and said, I want to be deported without my child. I want my child to be able to stay here. Ultimately, the ICE agents accepted that. But they said, OK, get your stuff off the bus and then drove the bus away and did not let them say goodbye to their children again. So right after they were reunited with their children, they were separated again for the second time in several months without any chance to say goodbye.

Their children were like looking out of the windows of the bus at them as they pulled away. Even though they were given the form with you and your kids get deported pre-selected? That was the option that they ultimately selected. But the way in which it happened, the kind of fact that they were yelled at when they tried to select, I want to get deported, but keep my child here. And then they were separated from their children unceremoniously without any chance to explain or say goodbye, indicated that it was being used as kind of a punitive thing. Like, fine, if that's the way you want to do it, then we'll just take them away now. The kind of overall picture that this declaration paints is that ICE had tried to coerce them and punish them when they refused to be coerced. All of this is to say that as recently as this weekend, the United States is still separating

families at the border. As far as we know, it's separating families who, like, in theory consented to be separated. But here's why this is worrisome. If these ICE agents are pressuring these parents to make one choice, for one thing, they're pressuring them to waive their child's legal rights to try to stay in the U.S. Right. The judges involved in this case and the ACLU and the government

all agree that if a parent has already been ordered deported, it is okay to tell them you have to choose either be deported with your kid or leave your kid here. Like, that is a choice

that it is legally fair for the administration to ask a parent to make. But that choice has to be, like, freely chosen by the parent. And the ACLU has been saying, you know, people really need time with their kids to make this decision. They need to talk. They need to have a plan for where the kid would go. They've been arguing that the government actually needs to stop deporting any of these parents for seven days so that lawyers can go through and talk to each individual

family and say, do you understand what this means? Are you sure? What's your plan? The question of whether the judge should stop deportations is one of the live issues right now. The judge is going to rule on that any day. And what happened over the weekend is the first indication that we've had that despite the government's claims that it's allowing parents to freely choose these things, it may be taking advantage of the emotional turmoil that parents are feeling upon being separated and reunified. That indicates that, you know, seven days to make sure that a lawyer is talking to the whole family together isn't an opportunity that these families are going to have necessarily without judicial intervention.

So you published a story about the situation with the pre-filled out forms on Sunday. Has ICE responded to it? ICE actually got back to me early Sunday morning when I first emailed them for comment. And, you know, gave me a statement that said that ICE does not interfere in the parent's decision to allow the child to remain in the U.S. to pursue his or her own legal claim. But, you know, they said it's longstanding policy for us to offer the parent deported together or deported alone, but we're not going to get involved in that decision. So you've got this lawyer saying my client's got forms that were already filled out, and ICE saying we don't interfere in the client's decision. The way to read that statement is that ICE is making a statement of general policy, right?

Like ICE was not specifically attesting, we know exactly what happened here, and that's not what happened. But in previous cases, when there have been kind of reports of ICE agents doing things that seem like flatly illegal, ICE will say, well, we can't track this case down unless we have the name and the case number of the asylum seeker, the migrant. And lawyers are usually loath to provide those because they're worried about retaliation. Who do you believe in these situations? In general, it's been really hard. This particular story is different because this is a sworn attestation in court from the lawyer. So either the lawyer was lied to by all four of these parents who weren't together when she talked to them. She had to track a couple of them down.

Or ICE is using their general statement of policy as a substitute for what is actually happening on the ground. The government, in theory, has guaranteed regular phone contact between parents and children who haven't been reunited yet. A lot of the families who have been reunited say that they got one phone call and it was like 10 minutes. So there is some indication that what the government says is happening kind of at the higher levels may not be reflected by what's happening on the ground. And that's just an accountability question of how much do people at the top know when they say that this isn't what's happening? Is this sort of a new development? Are things actually getting worse at the border right now? I don't know that it's worse necessarily. What this is is kind of the first public indication we've had of something that the ACLU and lawyers have been saying for a while, which is that it's just a mess on the ground.

We are not sure that parents understand their legal rights. We are not sure that the government is allowing them to go through this process in an orderly manner. And the government's been saying, well, we really object to that characterization. How dare you say it's a mess? This has been kind of the first sworn, you know, public document saying, look, there are serious concerns that the government is continuing to treat keeping families together and going through an orderly process as two separate things. They've just now switched it over to keeping families together while possibly cutting some corners on due process. Darylyn says there are three keys to understanding this very complicated situation at our border right now.

That's in a minute. This is Today Explained. Updating your apps can be a bit of a drag. It takes time. You've got to get the Wi-Fi going. All of a sudden, there are these new features you don't recognize, but sometimes those features can make your life easier. And that's what Uber is trying to do with its new features. They're designed to make picking you up easier and dropping you off easier. You can find out more about those features at uber.com

slash moving forward. Dara, I think one of the things we can all agree on is that this is a mess. And I'm wondering, like, what you need to know to really understand the scope of this mess and what happens next. The government right now has kind of gone through a round of reunification. And at this point in the legal battle, there are fights on three separate fronts. One of them is that a lot of kids still haven't been reunited with their parents. They're still being kept in government custody. So, like, there's the question of how they're being treated there.

So kids still in government custody. There's the question of, for those kids, when are they going to be reunited with their parents? Which ones are going to be reunited with their parents? How will that reunification work? Got it. with their parents? How will that reunification work? And then there's the question of for families that have already been reunited, what happens next for them in that process? This isn't necessarily like a chronological sequence, right? All of these things are happening at once. Right. In theory, that they're working to trap down families at the same time

that they're taking care of the kids at the same time that other families like have been reunited and are waiting. So what about the kids who are still in government custody? What's happening to them right now? The children that are still being held in custody are being kept in facilities that aren't run by ICE. They're run by the Office of Refugee Resettlement and often by contractors under that. What came out last week was a story of a six-year-old girl who was sexually abused in an Arizona detention facility run by an organization called Southwest Key, which is responsible for running a bunch of these child centers.

Free the children now! These activists are still aiming anger at Southwest Key over the federal operations. And we're here to say to the city and the county, end your contracts, every penny of public money. This six-year-old girl had to sign a form saying that she understood it was her responsibility to keep away from her abuser in the future as a six-year-old girl while she had been separated from her mother. And so there are these existing problems with the system of, you know, how immigrant children are being dealt with. And there have been lots of questions about whether the director of the Office of Refugee Resettlement, Scott Lloyd, who has apparently spent a lot more effort kind of stopping immigrant teenagers from having abortions while in custody. So you have asked them to possibly consider choosing life as opposed to abortion?

I've presented options to, you know, a few folks who are pregnant and I wanted them to know that, you know, we were there to help them with their situation and we wanted them to know as fully as they could what was available to them. But he's been very silent on a lot of this family separation, family reunification stuff. And so there are these kind of existing questions about what does ORR see its role as? Is it going to make sure that children are being cared for adequately while in custody that aren't specific to this group of children. But because family separation has called attention to this existing system has created kind of a window into how things are working now.

And is this six-year-old girl the only case of alleged sexual abuse? There's so little transparency into any of this system that just because the nation reported on that one case last week doesn't mean that there aren't other cases out there. There's another facility that a judge literally on Monday had to order the government to take all the children out of that facility because there were so many reports of misconduct, of kids being given psychotropic drugs without their consent. The Shiloh Treatment Center in Manville coming under fire. According to the suit filed in April, children being held in these types of facilities are almost certain to be given psychotropic drugs like Prozac, regardless of their conditions and without their parents' consent. The judge literally had to order the government to make sure kids were getting drinking water. Those abuses had been brought to light by journalists, including Ara Bogato of Reveal. But it's reasonable to wonder what else is going on that without the kind of firepower of public opinion trained on it isn't going to get discovered.

Just over half of these separated children have been confirmed to be reunited with their families. The government's still trying to reunify the rest? This is the legal question right now. The kind of biggest portion of this group is the 450 or so parents who have already been deported. And the government has never said, look, we don't think it's our job to track these parents down. What they've said is, let us focus on reuniting parents who are in the U.S., who are in custody. And by the end of last week, the ACLU was going, we have partners who are, you know, nongovernmental organizations in Central America who could help us track these parents down. We need information from you guys.

And the government has said, well, if we give you any information about the parent, it's going to be a problem for privacy and it's going to keep us from efficiently reunifying families. Judge Sabraw has been very clear that he ordered the government to reunify everybody and that that needs to happen as soon as practically possible. So how that's going to work is kind of one of the bigger remaining questions. What's the point of a judge ordering the government to reunify all of these families by a certain date if the government's just allowed to not do that? In theory, what this is, it's essentially an ongoing negotiation, right? The government at any given time is working to persuade the judge that they are working in good faith to comply with the terms of his order. The ACLU, instead of trying to argue that they haven't been, most of the time has been

saying, we are working with the government and putting pressure on the government to comply more fully and quickly. If you just say, okay, you're not in compliance and bang the gavel, that doesn't reunify people. Saying, okay, we're going to continue to work together. I'm going to set more deadlines. I'm going to order you to turn over more information. You know, I'm going to order you to submit to me a plan for how you're going to find deported parents, which the judge did on Monday, is closer to reunification than just, well, dang it, you're not doing what I say. You're not in compliance with the court order. So what's going to happen to these families once they're reunified?

For a thousand of these parents, they already kind of have their deportation orders ready to be executed. And so this is kind of where the filing that happened over the weekend with the ACLU comes in, because this is the point at which the family is supposed to decide what makes the most sense for them. Now that they've been reunited, now that they're all together. Are they going to go back together or is the parent going to allow the child to stay in the U.S. while the parent is deported? That, in theory, is supposed to be the kind of next step for them. But what this new ACLU filing that I wrote about raises is the possibility that the government is not allowing that step to happen in a freely chosen way, that they're instead forcing everybody to accept getting deported as quickly as possible, rather than allowing parents to make

an informed choice about what's best for the future of their children. She is our executive producer. Bridget McCarthy is our editor. Noam Hassenfeld and Luke Vanderplug produce the show. Afim Shapiro is our engineer. And the endearing Breakmaster Cylinder makes music for us. Thanks to our summer interns, Catherine Wheeler and Bree Seeley. You can find all the links to Dara's reporting on this story by following

Today Explained on Twitter at today underscore explained. Thanks to Julie Bogan for all her work there. And thanks to Ezra Klein, Jillian Weinberger, and Vika Aronson for their help this week. Today Explained is produced in association with Stitcher, and we're part of the Vox Media Podcast Network. One last time before we go, Uber is moving forward with new features in the app designed to take the stress out of the pickup process of moving forward in your Uber.

You can find out more by going to uber.com slash moving forward.